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10/21/96 TERRENCE J. HALL v. BOARD TRUSTEES STATE

October 21, 1996

TERRENCE J. HALL, M.D.
v.
BOARD OF TRUSTEES OF STATE INSTITUTIONS OF HIGHER LEARNING



Before Prather, C.j., Smith And Waller, JJ.

The opinion of the court was delivered by: By: ED Davis Noble, Jr.

TRIAL JUDGE: HON. WILLIAM F. COLEMAN

COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT

NATURE OF THE CASE: CIVIL - STATE BOARDS AND AGENCIES

(OTHER THAN WORKERS' COMPENSATION)

DISPOSITION AFFIRMED IN PART; REVERSED IN PART - 5/14/98

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

SMITH, JUSTICE, FOR THE COURT:

¶1. The genesis of this case arises from an anonymous, written complaint against Dr. Terrence J. Hall involving allegations of sexual harassment against a female medical student. The Department of Human Resources at the University of Mississippi Medical Center (hereinafter"UMC") authorized the campus police to conduct a full-scale investigation into the allegations. After the investigation was completed, the Department of Human Resources concluded that the evidence presented showed that although UMC's sexual harassment policy was not violated, Dr. Hall's conduct constituted inappropriate behavior. As a result, Dr. Hall was issued a written reprimand. All documentation of the investigation and the written reprimand were included in Dr. Hall's personnel file.

¶2. Dr. Hall initiated a faculty grievance in accordance with the Faculty/Staff Handbook and the Procedures of UMC. At all levels of University review, including review by a Faculty Grievance Committee, Dr. Hall was denied all relief requested. Dr. Hall then appealed to the Board of Trustees of State Institutions of Higher Learning (hereinafter "the Board"), and the Board affirmed the decision of the Faculty Grievance Committee. Dr. Hall next filed a Petition for Writ of Certiorari with the Circuit Court of the First Judicial District of Hinds County alleging that the Board's affirmance of UMC's conduct was arbitrary and capricious and in violation of his constitutional right to substantive due process. The circuit court denied all relief requested by Dr. Hall.

¶3. Dr. Hall now appeals to this Court the circuit court's denial of relief and claims that he was denied substantive due process by both UMC and, ultimately, the Board by UMC's failure to follow its internal procedures in launching an unjustified investigation and in the review thereof by failing to actually exercise professional judgment by denying him any of the relief which he sought for the wrongs done to him. The Board claims that Dr. Hall's substantive due process rights were not violated because Dr. Hall has no protected property interest as an untenured professor and no liberty interest in his reputation. We reject Dr. Hall's claim of a protected property interest and hold that Dr. Hall did have a protected liberty interest but suffered no deprivation of that liberty interest. We do, however, agree that all of the investigatory material should be removed from the personnel file. We find persuasive the procedure of Robinson v. Jacksonville Shipyards, Inc., 760 F. Supp. 1486, 1537 (M.D. Fla. 1991), and require that these materials be removed from Dr. Hall's personnel file and be placed in a confidential UMC campus police file. We accordingly affirm in part, and reverse and render in part. FACTS

¶4. Dr. Hall, a surgical oncologist, served in a teaching position at the University of Mississippi Medical Center (hereinafter "UMC") from 1990 until 1996. While at UMC, Dr. Hall's career was on schedule for him to eventually become eligible for tenure when in 1994, Dr. A. Wallace Connerly received a typed, anonymous letter containing specific allegations of sexual harassment against Dr. Hall.

¶5. The alleged incident that gave rise to the anonymous letter occurred sometime between late November and early December when one of Dr. Hall's students, a third year female medical student, approached Dr. Hall with questions concerning how to correctly interpret a mammogram. However, before the anonymous letter surfaced, rumors were circulating of the alleged incident in Clinic 2, and such rumors led Dr. Carol Scott-Conner, Professor in the Surgery Department, to investigate the rumors by asking the third year female medical student and Dr. Hall about the incident. Dr. Scott-Conner, before the Faculty Grievance Committee, testified that at this time the student told her that she went into Dr. Hall's office to inquire about how to interpret a mammogram and that Dr. Hall, in demonstrating the technique, touched her breast to explain the procedure. The medical student further told Dr. Scott-Conner that "[Dr. Hall] did not to (sic) it with any kind of lascivious intent," but she did feel that what Dr. Hall did was improper. However, Dr. Scott-Conner stated that the student did not voice any desire to take the matter any further.

¶6. When Dr. Scott-Conner questioned Dr. Hall about the matter, Dr. Hall responded that he did not remember any such touching of the student's breast. Dr. Scott-Conner additionally stated that she told Dr. Hall that whether the incident occurred or not that "the way things are now in this society, you can't touch students." Dr. Scott-Conner further testified that she thought that after talking to the medical student and Dr. Hall that nothing further needed to be done and did not even report it to Dr. Robert S. Rhodes, Chairman of the Department of Surgery, because she felt like it was a closed issue. However, Dr. Rhodes later learned of the episode and questioned Dr. Scott-Conner about her knowledge of the incident, and Dr. Scott-Conner told Dr. Rhodes that she talked to the medical student and Dr. Hall and that she considered the issue closed after doing so.

¶7. Dr. Scott-Conner then stated that her conversation with Dr. Rhodes was the last she heard of it until the anonymous letter surfaced. The anonymous letter alleged that upon being presented with this question that "Dr. Hall grabbed the student's breast with both hands and proceeded to demonstrate the process of mammography by squeezing her breasts in different positions and referring to them as `tits' as he massaged her breast for several minutes in full view of other employees, nurses and other medical students." The letter additionally stated that "Some of us did go and complain to Dr. Scott-Conner, the Vice-chair of Surgery, and expressed outrage at this inexcusable behavior." The letter concluded with the statement, "The fact that UMC has allowed him to continue to perform in the institution unpunished is evidence that the men who dictate UMC policy are simply colluding with this unacceptable practice. At the very least this should be investigated by an impartial body outside the University." Copies of the anonymous letter were mailed to Chancellor Turner, the Board of Trustees, and Attorney General Mike Moore.

¶8. The anonymous letter was forwarded to the UMC Department of Human Resources for the purpose of investigation in accordance with UMC policy *fn1 which provides that all written complaints of sexual harassment will be investigated by Campus Police. The Assistant Director for Equal Employment Opportunity ordered the Chief Investigator for the Campus Police to conduct an official investigation of the complaint. A full- scale investigation was conducted and signed statements were taken from the alleged victim; all of the other third year medical students who were assigned rotation in Surgical Clinic 2 at the time of the alleged incident; two of the resident doctors assigned to the Surgery Department; Dr. Carol Scott-Conner; a Registered Nurse in Clinic 2; a Registered Nurse in Ambulatory Services; a nurses aide in Clinic 2; and Dr. Hall. In addition, a telephone conversation was conducted with a doctor no longer at UMC but who was on the block for surgery in Clinic 2 during the time that the alleged incident took place. All of these documents were included and still remain as part of Dr. Hall's personnel file.

¶9. The medical student in her statement to the police stated that the anonymous letter was erroneous. She further stated in reference to Dr. Hall placing his hands on her breast to demonstrate the orientation in which mammograms are taken:

Let me say at this point that I was surprised by that act but I did not feel humiliated or was I afraid. I did feel irritated. I really thought of this as an explanation to my question that I asked. I think that Dr. Hall's behavior was inappropriate for a staff member, but I don't think he did it with lecherous intentions. (emphasis added.)

¶10. Dr. Hall upon being asked by Campus Police to make a statement regarding the anonymous letter stated:

Regarding this letter, let me say that the only thing that I know is that several months ago an M3 medical student . . . was on my service in Clinic 2 and at that time she asked questions about evaluation of a mammogram. I remember describing the orientation of mammograms to the student and reviewing the mammogram on the x-ray viewing box. That's my full recollection, that's all I remember. There was no lewd conduct, no abnormal behavior other than the training of the student in the normal fashion.

¶11. After the completion of the investigation conducted by Campus Police, the Department of Human Resources determined and informed Dr. Rhodes that there was no basis to substantiate a finding that UMC's sexual harassment policy had been violated. However, the Department of Human Resources found that Dr. Hall had engaged in inappropriate behavior as a member of the teaching faculty and recommended that he be given a written reprimand and told that "failure to refrain from any conduct or action perceived as sexual harassment or improper conduct could result in his immediate termination."

¶12. The recommendation of the Department of Human Resources was followed by Dr. Rhodes actually issuing a written reprimand and informing Dr. Hall of the consequences of possible immediate termination if any further conduct or action that could be perceived as sexual harassment or improper conduct took place. Dr. Rhodes additionally informed Dr. Hall that

[Y]our effectiveness as a faculty member of this department and at UMC has been seriously, if not totally, compromised. I also do not believe you will be able to achieve the degree of career recognition and/or satisfaction you seek by remaining here at UMC. Thus, I have concluded that both your interests and UMC's interests would be best served by your seeking a position elsewhere.

¶13. Upon receiving this written reprimand, Dr. Hall initiated a faculty grievance in accordance with the Faculty/Staff Handbook and the Procedures of UMC. In his Grievance Report Form, Dr. Hall gave notice of his grievance as to the findings set forth in the reprimand letter including, but not limited, to the following: (1) the finding of "inappropriate" behavior; (2) that this finding was obviously initiated by an anonymous charge that was found to have been unfounded; (3) the proclamation that his services at UMC would be terminated as a result of the findings; and (4) the threat that further conduct would result in immediate termination, although there had been a finding that he had not engaged in conduct

which amounted to sexual harassment.

¶14. The first level of the grievance procedure involved Dr. Hall agreeing to an informal Discussion, as opposed to a formal written complaint with response in writing, regarding his grievance with Dr. Rhodes acting in his capacity as Chairman of the Department of Surgery. However, when Dr. Rhodes was asked by Dr. Hall to please be prepared to discuss all incidents pertaining to the alleged pattern of inappropriate behavior, Dr. Rhodes responded that he was not aware of all the incidents pertaining to the alleged pattern of inappropriate behavior and refused to discuss the matter. Feeling that the informal meeting was not productive, Dr. Hall then filed a formal complaint with Dr. Rhodes. Dr. Rhodes concurred with the findings of the Department of Human Resources and denied all relief requested by Dr. Hall.

¶15. Dr. Hall next proceeded to the second step of the grievance procedure, a tape recorded meeting with Dr. Helen R. Turner, Associate Dean for Academic Affairs. After reviewing all of the investigation materials provided by the Department of Human Resources, speaking with the medical student, and discussing the grievance with Dr. Hall, Dr. Turner concurred with the actions taken by Dr. Rhodes in issuing the reprimand.

¶16. Still aggrieved, Dr. Hall next took his grievance to the third level of the grievance procedure, review before the UMC Faculty Grievance Committee, alleging that he had not received due process as a result of the investigation conducted by the Department of Human Resources based on an anonymous charge of alleged sexual harassment and not a formal complaint signed by his accuser. Dr. Hall further alleged that grievous damage had been done to his reputation as a result of the contents that were included in his personnel file. Before the Faculty Grievance Committee, Dr. Hall requested the following relief: (1) the purging of his personnel file of all documents which relate to the alleged sexual harassment incident; (2) a withdrawal of the findings that he engaged in "inappropriate behavior;" and (3) a reversal of the premature decision that his contract shall not be renewed.

¶17. At the beginning of the Faculty Grievance Committee's review, Dr. Roland B. Robertson, Associate Vice-Chancellor for Health Affairs chairing the Faculty Grievance Committee, stated the committee's intended focus of Dr. Hall's grievance was as follows:

Let's make it clear at this point that those allegations [of sexual harassment] were not proven, and so we are not here to deal with that issue. The issue--and I'd like for the committee members to correct me if they do not agree with this --the issue is appropriateness of conduct, behavior and action. Also, there was an allusion in some statements, about his professional capabilities. We are not here to delve into those, because we don't feel that's a purview of this particular body, and that would be up to the chairman and the medical staff of the hospital, and so forth. So, I am trying to limit this to what has been termed inappropriate behavior, statements, and so forth. So that's what we're trying to get at.

After reviewing the investigative materials included in Dr. Hall's personnel folder and meeting on eight different occasions receiving both written and oral statements, transcribed by a court reporter, to consider Dr. Hall's grievance, the committee recommended to Dr. A. Wallace Conerly, Vice Chancellor for Health Affairs, that Dr. Hall behaved inappropriately while demonstrating positioning of a breast for mammography on the third year ...


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